Copyright over promotional pictures of flowers

Published onMay 2016

Does copyright apply to promotional pictures of e-commerce web sites?

The question is a real issue considering the growing number of e-commerce web sites and the huge content of pictures made available on such web sites to represent and promote purchasable goods.

Copyright, or author’s right according to the French doctrine or definition, may exist over works that reflect the author’s personality, that show or contain original features.

French courts regularly reject claims for copyright protection because the author does not evidence why a given work should be considered original (see our article A copyright infringement action requires preparation). And a recent decision from the Court of First instance of Paris shows that demonstrating originality of one’s work is easier said than done (Court of First instance of Paris, 3rd chamber, 2nd section, 29 January 2016).

The litigation arose between two French companies promoting and selling flowers over the internet. One of them found that four of its pictures representing bouquets of flowers had been copied and reproduced (with minor differences) just to be republished on the other’s web site. The former sued the latter for copyright infringement.

The plaintiff did file a detailed complaint explaining what the original features of the pictures were. But the judges did not find the evidence and explanations satisfactory. They admitted the photographs had been taken by a skilled professional with a technical expertise or know-how but denied any copyright protection considering the pictures were without esthetical identity and did not result from arbitrary choices made by the author (such as the setting, the lighting or the staging). The composition of the photographs was deemed commonplace such as the subjects of the representations, i.e. bouquets of flowers as you can see on numerous web sites. The infringement action was dismissed.

Maybe there will be an appeal in this case. Maybe there is one already. And maybe the decision of the Court of Appeals will be different. But the case reveals the difficulty for e-commerce web sites to protect and value their marketing and advertising investments.

Marketing of purchasable goods on the internet means publishing photographs or packshots that are as true as possible to the original goods because you need to show the internet users and future clients exactly what they are going to purchase. You cannot allow originality or creativity to interfere in the process.

© INSCRIPTA

The decision of the Court of First instance of Paris was appealed. See our article here.